BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130010330 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general under honorable conditions discharge to an honorable discharge.  

2.  He makes no additional statements.  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 23 August 1989.

3.  On 17 October 1994, the applicant's unit commander notified the applicant of his intent to recommend discharge under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  The unit commander stated the applicant was charged with burglary by the Clarksville Police Department on 24 July 1994.  The applicant was advised of his rights.  On the same date, he acknowledged notification of the separation action.  

4.  On 24 October 1994, he consulted with legal counsel and was advised of the basis for the contemplated action to separate him for commission of a serious offense under Army Regulation 635-200, paragraph 14-12c and its effects.   He requested consideration of his case by an administrative separation board and submitted statements in his own behalf.  He stated he had been on active duty for nearly five and one half years, completed basic and advanced individual training, served two years and three months with the 2nd Armored Cavalry Regiment, and had a short tour in Saudi Arabia.  He served his last unit well, received several commendations, was hard-working, reliable, and completed dependable performances to contribute to his unit's mission.  He admitted he was wrong, didn't think of the consequences, and let his impulse overcome his best judgment.  He's convinced he would be able to make a good contribution to society.  He would like to leave [the military] with an honorable discharge so he will not have the stigma of an other than honorable discharge when seeking civilian employment.  

5.  On 20 November 1994, his unit commander recommended approval with an honorable discharge.  On an unknown date, his intermediate commander recommended approval with a general under honorable conditions discharge.

6.  On 6 December 1994, the separation authority approved the separation action and directed the applicant be discharged with a general under honorable conditions discharge.  

7.  On 13 December 1994, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 5 years, 3 months, and 21 days active military service.  

8.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An under other than honorable conditions (UOTHC) discharge is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  

   b.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record shows he was charged with burglary by the Clarksville Police Department on 24 July 1994.  

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  Although a UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct, it appears the separation authority determined the applicant's overall service met the standards of acceptable conduct and performance of duty to warrant a general discharge.  

4.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his general discharge to an honorable discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  ___X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________X_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130010330





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ABCMR Record of Proceedings (cont)                                         AR20130010330



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